11 Wash. 8 | Wash. | 1895
The opinion of the court was delivered by
In an action upon a promissory note made by the defendant, J. H. Greiner, judgment was rendered in favor of the plaintiff for the amount of the note and interest. It was further adjudicated therein that such judgment could be enforced against the community property of said Greiner and wife. An execution was duly issued to enforce the judgment. Thereafter, supplemental proceedings were commenced under the provisions of §§ 522-528, Code Proc. In the affidavit upon which such proceedings were founded it was alleged that the defendants had property which they unjustly refused to apply towards the satisfaction of the judgment. The defendants appeared in the proceedings, and denied the material allegations of the affidavit. The issues thus made were tried before a jury, which by its special verdict found that of two pieces of property as to which evidence was introduced, both of which stood in the name of the wife, one was her separate estate, and the other community property. Upon such verdict it was adjudged that the piece owned by the community should be applied towards the satisfaction of the judgment. Thereafter, execution was issued and levied upon this piece, and sale thereof made and duly reported to the court. When such report came before the court for confirmation the defendants appeared and objected to such confirmation, and moved that the sale be set aside for the reason that the property in question
Respondents move to dismiss the appeal for the reason that it was not taken in time, but the conclusion to which we have come as to the merits of the controversy makes it unnecessary for us to decide the questions raised by the motion.
It is claimed by the appellant that the proceedings supplemental to execution, and the order and judgment of the court rendered thereon, conclusively established the fact that this piece of property should be applied towards the satisfaction of his judgment. The respondents contend that such proceedings are not in the nature of an independent action, but are simply in aid of the process issued, or to be issued, upon the principal judgment; that the only object of the proceedings is to ascertain what property is so held that it can be rightfully levied upon to satisfy the judgment to which the proceedings are supplemental.
The contention of the respondents must be sustained. The proceedings supplemental to execution are mainly for the purpose of discovery, and it cannot be successfully contended that the general lien upon real property flowing from the judgment is thereby converted into a specific lien upon any particular property. The most that can be rightfully adjudicated in such proceedings as to real estate is as to who is the owner thereof. And it may well be questioned whether or not the proceedings have any application to real property. However this may be, its application- to such property, if it has any, can only be as above stated.
The most that the order made in the proceedings could be held to have conclusively decided was, that
It follows that after such selection the property could not be sold except in such a manner as to protect the homestead rights of the respondents. This was the conclusion to which the superior court arrived, and the order appealed from must be affirmed.
Scott, Dunbar, Anders and Gordon, JJ., concur.